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A Rant - An Australian Icon of a song and a greedy scurrilous corporation.

43K views 155 replies 35 participants last post by  SaxPunter 
#1 ·
Hi All

This issue has been irking me for days

http://www.news.com.au/entertainmen...t-rip-off-ruling/story-e6frfn09-1225826972739

Many of you know the song "Down Under" by Australian Band Men at Work. It's also become a quasi national anthem especially at sporting events. There's a flute riff in it that if you listen carefully sounds like "Kookaburra sits in the old gum tree" which was a round written for a Girl Guides competition many years ago. The author of that round passed in 1988. 4 years ago, Larrikin music - backed by a London company Music Sales Group, which, on its own website, states that it "owns, manages and exploits over 200,000 music copyrights. It is also Europe's largest printed music publisher" bought the rights to "Kookaburra" Exploit being the operative word here.

If you listen to the riff - it does sound like the Kookaburra melody, all 11 notes of it.

This week an Australian judge ruled that Men at work ripped off the song, despite the fact that "Down under" was written 2 years earlier and performed in pubs sans flute.

For this, the stand up guys at Larrikin music - who describe their victory as "one for the underdog" want 40-60% of the royalties from a 3 second flute riff in a 3 minute song.

Here's Colin Hay's (Men at Work lead vocals, songwriter) response to the ruling

http://www.dailytelegraph.com.au/ne...nt-make-me-laugh/story-e6frezz0-1225826872936

So - watch what you play boys and girls, stand up guys who "exploit copyright" might hunt you down in 30 years

The greed in this world is, well just sad :x
 
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#57 ·
I've been a jazz fan for about 55 years, give or take, and it has always been deemed appropriate if not clever for musicians to "quote" passages from known works duriing the process of improvising. Does that mean all of us are subject to being sued if we do that, or does it mean anything at all in terms of whether we can place a performance recording into the public domain? I'd be willing to bet that just about any record or CD done by Dave Brubeck with Paul Desmond might fall in this category...

Instead of calling it "copyright infringement," perhaps it should be embraced as "free advertising."
 
#116 ·
"... it has always been deemed appropriate if not clever for musicians to "quote" passages from known works duriing the process of improvising."
This is such a time-honored practice in improvisation. I fear that this type of litigation, and posturing to take advantage of international copy write law, will be a significant future revenue stream for the music publishing industry (and their legal council)-especially in these precedent-setting cases. As jrvinson45 points out, how many great solos have we heard which contain this type of readily identifiable "homage" to another great artist-even if it's just a single lick?

I don't believe that this will be limited to copied (or similar) licks either. To the best of my knowledge, John Fogerty was plagued by a suit from his old record company because he (and the rest of Credence Clearwater Revival) had foolishly signed away the rights to their music when starting out. The suit was not about paying royalties for CCR songs, but for his newer works, under a different label, like "Centerfield" because they had a readily-identifiable resemblance to CCR's style and sound. Holy cow! Does that mean if I hear Jerry Bergonzi play something that sounds Coltrane-esque, he's obliged to pay royalties on it? (If only I was talented enough to have people say that I sounded like Coltrane-even for just a few notes.)
 
#58 ·
A few notes (2 bars) of a more than 75-year-old melody were used in the instrumental break that was added to an original song when it was recorded. The composer of the "quoted" melody died over 20 years ago. Some time after that, a corporation acquired the rights to that melody. Almost 30 years after the recording with the instrumental break was released, the company that now owns the copyright to the older melody sued. The judge ruled in favor of the company.

That's the most plainly factual summary of the case I can write. I guess what bothers me most about this is the amount of time that passed after the record was released and after the composer of the 75-year-old melody had died, and also that the composer was alive for several years after the recording was released and never expressed a concern. Another thing that bothers me is that the "borrowed" notes were not integral to the song, they were not part of the song's melody, they were part of a short instrumental passage in the arrangement on the recording. What about thousands of jazz recordings that quote a couple of bars of familiar tunes? Can they all be sued for damages? The judge's ruling in this case may strictly conform to the law, but it reminds me of Mr. Bumble in Charles Dickens' Oliver Twist. When he is informed that "the law supposes that your wife acts under your direction," Mr. Bumble replies "If the law supposes that ... the law is a ass-a idiot."
 
#59 ·
What about thousands of jazz recordings that quote a couple of bars of familiar tunes? Can they all be sued
Quite possibly. But anyone who decides to sue needs to know what kind of "damages" might be involved. In the case of a jazz musician quoting a fragment on a very low selling record, it is not worth the time let alone the expense.

But my understanding of this case is that it's a big selling record, so not quite the same kettle of fish.

I have stolen peoples' copyright in the past. Nobody has sued me yet because there are no damages worth worrying about.

This case seems to be a bit different. I hope the defendant appeals.
 
#61 ·
My beef here is really that the song existed as a copywritten work prior to the recording. so the only claim should be on the recorded version, sales and future uses, mechanical rights, synchronization, of the specific Men at work arrangement that includes the flute part. if they acquired part of the songwriting credits to the original song and future rights, publishing rights etc. that is wrong. The song existed prior to the disputed part and could be cover in whole (lyrics and melody) by another artist without the disputed parts. would this new artists work be paying royalties to the birdy in the gum tree ?
 
#63 ·
It's time to get proactive.

We should make songs consisting of nothing but scales and arpeggios, repeated with only the rhythm changed. Copyright them. They're going to suck but that's not the point.

Then we sue everyone who dares to write a song after our catalog is copyrighted. There are two possible outcomes:
* Our copyrights get invalidated on some technicality. Precedent is made.
* We win, and copyright law itself has to be changed to make the music business able to function again. Everyone wins.
 
#66 ·
My questions are....
did the Men at Work song decrease the commercial value of kookaburra? I am pretty skeptical that it did.
What percentage of the Men at work Song is the 2 bar riff? and how important is it in comparison to the rest of the song?
For example, lets say that the men at work song is 50 bars then the 2 bars constitutes 4%. I think you could make an argument that the owners of kookaburra deserve 4% of the revenue from Land Down Under.
Maybe you could argue they deserve some what more if it constitutes a core and important part. But jumping from say 10 or 15% to 65% is non-sense.

I also believe, that a copyright holder has an obligation to make a correction as soon as the offense is detected so as to minimize the damages. A copyright violator should be allowed to modify their work to mitigate the problem. Here the copyright holder knew about the damages for 18 years before they perused their case.

I also like the comments of

www.npr.org/templates/story/story.php?storyId=120984958

JOEL FOWLER (JFowler11) wrote:

"Hello, I'm a representative of the Australian Audubon Society, and we would formally like to bring suit against the heirs of Marion Sinclair and whomever owns the rights to her composition "The Kookaburra Song." As any person with ears can clearly hear, Ms. Sinclair has stolen the four-bar beat pattern of my client's (the Australian Kookaburra) laughter. It is a complete theft, and we wish to obtain all profits and royalties that Ms. Sinclair may have earned over the last 75 years."
 
#74 ·
There are a couple of small companies doing nothing else but buying rights of obscure findings and suing 'copycats' out of their pants.
These companies usually consist of a couple of lawyers and IT specialists running lots of comparisons and someone to type the letters.

Just google for patent and sideway swing.
You remember those swings you loved as a child, right? You only used them back and forth, and never sideways, right?
You never heard of that lovely tool to open castlegates called a ram, right?

Copy and patent rights and durations vary quite a bit, depending on the country your living in.
Iirc, the US laws protect those rights for 20 years + 68 years added automatically on top ...
In Germany you can never lose ownership of your creative works unless you think it up as a bought work with a contract stating that you forfeit the rights right there - and the later part is kinda unsure as it has not yet been on trial as far as I know.
In the US you can trade those rights freely. Guess why many companies love to move their R&D departments out of Germany and into the US or other countries with similar laws.

I'd bet that it is extremly hard to find 10 notes not used in the past 80 years ...
 
#75 ·
I often think and wonder about the early musicians who without technology, went from town to town, playing their music, sharing with other musicians, learning from each other - they were 'real' musos. How much of their stuff have we (the modern world) copyrighted and claimed as our own.

Also, think of the same song you may have bought over the years, from tape, to 45, to lp, to cd to itunes - man I have payed the record companies over and over again with no rebate. :)

As to this issue, copyright does have its place, but this is just wrong.
 
#76 ·
!!!
so the kookaburra author suffered damages from this supposed palgerism? maybe MAW stole the spotlight, and "kookaburra sits in the ole gum tree-ee,..." would have been played/sang at all the sporting events? shame on you MAW, now the aussies think they are singing kookaburra, but are really singing Land Down Under. those sneaky, thieving musicians.

ya know what i find more and more offensive? the way that citizens can be raked over the coals for doing wrong, sometimes even being innocent, but when the judicial system wrongs people, they have no consequence. and it's the citizen who feels the most detriment to any punitive recourse. not that i'm saying such systems aren't good/necerssary in an orderly civilization, just that people/decisions from such orgs should be held accountable. i've seen the inside of such places, and really lost respect because of the irony of the reason for the institution and the actual practice. and it's not just a philosophical issue - real peoples lives are hugely effeted and many times ruined.

this case alone is gonna cost the song's author a ton of money - a huge impact. and who will it go to? it will go to some shysters who have no interest in any REAL trespass, but who are trained in manipulating the law and judicial system to attack for money. and the world is getting more and more full of such scoundrels. and why does the system not recognize when it is being manipulated for unjust principles?

someone might complain that copyrights are necessary to protect the income of the artist(s), but the same argument could be made that it is BECAUSE of those copyright laws, and the system that enforces them, that many artisits are squashed.

this is the information age. how can anyone really ever expect to produce anything completelty original? i'm sure that most of the lines, written by any poster, on this website have been included in a copyrighted document at some time/place, in some part. and music has a lot smaller vocabulary. so, really, where are the "damages"? in this case, the damages are felt by MAW because of some criminal opportunists (aka lawyers) and a courtroom. BUT, MAW is not the only victim. it is every other musician who has to pay to survive these "copyright" laws and it's opportunists.

ps. i used to think that the theatrical mockery of justice seen on some of those tv show judge shows (like "judge judy") was just on tv. not so.
 
#77 ·
someone might complain that copyrights are necessary to protect the income of the artist(s), but the same argument could be made that it is BECAUSE of those copyright laws, and the system that enforces them, that many artisits are squashed.
Not sure about that. I think the copyright laws we have protect more artists than squashes them. How does it squash them?
 
#79 ·
In NZ copyright only applies for 16 years.

AND...

If a plaintiff sues for copyright but only claims for damages and not loss of profits,
if the defendant can prove that the copying was done innocently, then they are
not liable.

However, in NZ, you do not have to register a 'work' for copyright to apply.
Copyright only applies to the original artistic work and not anything produced
from that original work.
For example if you designed a unique coffee mug, the copyright only applies
to your artistic work, the drawings. It does not apply to coffee cups produced from
those drawings.

If you produce a 'work', you own the copyright.
If you commission another party to produce a 'work' on your behalf, and you discuss
monetary compensation for that effort PRIOR to the work being done, then you
own it. Even if you do not pay them. All that is necessary is that you did discuss
with them that you will pay them (sometime).
If you commission another party to produce a 'work' but no compensation is
discussed, then they own the copyright (even if it was based on your original ideas).
 
#80 ·
#82 ·
http://www.abc.net.au/news/stories/2010/02/25/2830442.htm

Men at Work's record company is appealing, let's hope sense prevails.
"In my opinion, there is a sufficient degree of objective similarity between the bars of Kookaburra which are seen and heard in Down Under to amount to a reproduction of a part of Miss Sinclair's round," Justice Jacobson said.

for cryin out loud.

and the rest of the article mentioning the defense of EMI is spot on. sheesh, a quote from that old song would only act as a salute to it and the australian heritage.

btw, i used to sing that song in class in elementary school (in america).
 
#88 ·
PSR (GB) and the GEMA (Germany) and all the other similar institutions mostly support the top acts.
The money distribution is handled by keys based on airplay and sales.
Composers and artist pay their fees to get their fair share.

To bad for the little people that they basically just pay for the service that does not yield a cent, eurocent, penny or whatever the smallest coin is.

If you have a club or a band and you only play non-copyrighted music like your own compositions, you still have to pay.

The system basically killed the noncommercial radiostations in Germany, including most of those created in universities and schools and especially those done as a hobby without any income generated.
Germany used to have a vibrant internet radio landscape where you can find a vast desert now.
Oh hello. We just changed the law. Please cough up the money for the last year. Thank you very much.

The road to hell is paved with good intentions. The stones are set by lawyers and politicians.
 
#89 ·
PSR (GB) and the GEMA (Germany) and all the other similar institutions mostly support the top acts.
The money distribution is handled by keys based on airplay and sales.
Composers and artist pay their fees to get their fair share.
Not true. PRS only collects on airplay or live play , not sales (that is MCPS, though now they are joined together as an alliance, they still function more or less as tow separate agencies)

PRS has nothing whatsoever to do with sales.

No fees are collected from composers.

There are of course indirect fees, in that PRS has to use some of the money they collect to administrate, but how else could it work. If they didn't collect the royalties, who would?

And they collect royalties for all composers who are members at whatever level. There is no joining fee (unless it's changed since I joined). And they collect for people such as myself as well as top acts.

I think about 50% of my income is from PRS, so I must admit I support a system which means I make a living, as opposed to one in which there is no collection agency so that radio, TV clubs etc can get away with broadcasting music for nothing and the composers end up with nothing. How fair is that?
 
#90 ·
Ah, I thought they were already further down the road of merging.
The distribution keys for the money are based on airplay, sales and life performances - as opposed to being based on the number of creations, or an even split between all 'creators'.

The website lists a threshold of 30£. You do not top it, you go empty.
The website lists that an evening of life music generates roughly 5£ for the creative folks behind the music. If your creations aren't played for more than 6 full evenings, you end up with nothing.

The GEMA website only states when you have to pay but I could not find any information about the fees. And I know there have been membership and other fees a couple of years ago.
At least they have a PDF explaining how to get and install the Adobe Reader and they explain that you have to pay tax for your income.

Half your income coming from PRS means that you're at least 'kinda successfull' being creative. That is quite impressive. :salute:
 
#93 ·
I've been a member of PRS since the early 80's and it has made up at least half of my income since then. PRS is an excellent organisation. With the decline in sales composers still have a living. Talking last week to the head of an A and R department in a major record company things are going from bad to worse. The only people who seem to sctually be buying CD's are over 40's who still like to have a physical product. I could never understand the argument that 12 quid is a lot to pay for a CD of new work when you consider the cost and the amount of work that goes into making the recording. 12 quid what is that? a couple of pizzas or an Indian take away .
The thing is if something can be had for free..burning or file sharing even a pound or whatever is too much and music rather than being valued is devalued and " Free". Younger people I work with are often surprised when I'm not keen on them burning a CD I just bought or ripping it to their computer or my refusal of their offers to do the same for me. Recorded music now is just seen as a give away ..a flyer for live gigs which are becoming more and more expensive as participants try to make a living. The money now is in live work and merchandising.Fortunately a live performance is unique and can't be burned yet..the difficulty for composers is in getting a share of this income stream of merchandise and live work/ sponsership something I'm trying to deal with now in negotiations with management in a new artist I'm developing ready to take to market.
 
#94 ·
I am a member of a PRS as well and technically I can't even play my own music for free in a club to promote myself (I do anyway) without the club owner having to pay fees since royalties need to be collected for performances of my work. I am not saying music should be free but there needs to be some reasonable effort made to encourage small clubs ( I'm talking 1000-2000 sq ft size, coffee house size) to again have live music as the norm. Exempt clubs under a certain size or revenue or reduce fees to a token amount so the laws designed to protect artist do not work against them when they are trying get projects off the ground.

We need small venues available for little guy or newcomer to cut his teeth and to promote independent music and smaller acts. obviously a larger club or a major entertainment group or casino etc... should pay fees. I'm talking about the local guy who wants to put a startup business together and the guys down the road who want to get started playing some cool music. Give them a break. Good for the club owner, good for musician, songwriters who are starting out, and good for the local economy. Right now its like its either large business or no business. It's not fair. The internet has given independents the opportunity to promote themselves on a scale unknown before and to succeed as a little guy. When its time to promote yourself live you really have to do things that are technically not legal if you want to slip that favorite cover into you set of originals down at the coffee shop. That should change.

There are things in place to help other small businesses compete with large businesses such as buying groups. Well my music is a small business and there should be things in place to help me as well. Perhaps a club or "buying group" that negotiates reduced fees for musicians and club owners under a certain size so we can compete fairly in the market place. If there is such a thing enlighten me. If there is none then Warner Bros Music and the like can take a torpedo in the side from copied CDs and PtoP sharing and I don't care as my boat has already been torpedoed.
 
#97 ·
... Good for the club owner, good for musician, songwriters who are starting out, and good for the local economy. Right now its like its either large business or no business. It's not fair. The internet has given independents the opportunity to promote themselves on a scale unknown before and to succeed as a little guy. When its time to promote yourself live you really have to do things that are technically not legal if you want to slip that favorite cover into you set of originals down at the coffee shop. That should change.

...If there is none then Warner Bros Music and the like can take a torpedo in the side from copied CDs and PtoP sharing and I don't care as my boat has already been torpedoed.
agreed. to say to a small venue that "you can't afford the license to have live music" is unrighteous. it's another one of those things that builds resentment toward the "establishemnt" and causes more and more people to turn from caring.

the small venues may not lose enought to be considered a change in status for tax/revenue/fee purposes, but many feel even the slightest fluctuation in patronage. their budgets are tight, and their profits are slim.

like spiderjames says, they are more of a local community support than a venue for profit from music/performance. maybe the 'big guys' can't see that cuz it messes with the revenue model, but the local community sure can see and feel it.
 
#98 ·
Less hassle playing top 40 canned music instead of the lifeset with the setlist.
More income through more seats as they do not have to keep a corner free for the musicians.

Great solution for top 40 writers and musicians and the club/bar/pub/whatever owner.
 
#103 ·
i don't think they are getting more income - actually less. the live music pulls in customers that folks can't hear sitting in their homes/cars playing their ipod/radio. it provides a different atmosphere, too.
there have been numerous occaisions where a live band/musician has pulled me and friends into a coffee shop. i(and friends) wouldn't pay extra to be there, but our presence brought business that 'normal' (non-live music) nights/days doesn't. not enought to justify a live music license expense for the shop/venue, or to pay for quality performances, but enough to help with bills.

i don't even consider sitting in the bars/lounges/shops that don't have the live music any more. no reason to make the trip or spend the time. Also, i will seldom spend the larger amounts to required to book a seat and buy an expensive meal at the more formal and crowded venues that obviously pay for licenses (the ones that only top performers/musicians can manage to work at). the economy requires a person to trim the frivolity.

i used to advocate, like pete (though not to that extent), for adherence to the laws for the sake of the original creators. i even elected to be a paying member of such orgs, despite advice to the contrary, when i was a worship leader for a bit. not so anymore. it's just too rediculous and ambigous in today's envronment. the paradigm shift in music medium from hard/real to electronic and the resulting flood of availablity of "free" music to the overwhelming majority of consumers has obviously created a hole in the music industry's pocket. with no solution to controlling recordings in sight, targeting live music seems to have become the giant's hammer. now they are stepping out of bounds, in my opinion. and cases like this MAW absurdity really seem to advocate against the laws/orgs. maybe copyright/performance rights laws are outdated.
 
#101 ·
1) in the US, these clubs would have to pay ASCAP/BMI if they played music in their establishment whether it is live music or CDs;
2) in the US, any publisher can issue a gratis performance license that supercedes an ASCAP/BMI blanket license - so if you had your own club and you wanted to play only your songs (and you still owned your own music publishing) and no other music was played at your club, you wouldn't have to pay ASCAP/BMI
3)ASCAP/BMI fees are not much...if you can't afford them, you're not going to be in business long (most places pay about $1.00 a day to have music in their establishment.)
 
#106 ·
I know a couple of bar and pub owners who started calculating which way is better for them.
Only one continued with offering life events.

The extra income generated by life events comes at way more hassle and preparation time. And the owner's or manager's time costs money too.

You think the copyright laws are outdated from the point of view of a musicion?
Ask your programmer friend what he thinks of the laws regarding software and protection.
 
#107 ·
...You think the copyright laws are outdated from the point of view of a musicion?
Ask your programmer friend what he thinks of the laws regarding software and protection.
i have been a hardware designer for more than 2 decades, designing in electronic medium. in that time, i've imagined and produced many unique designs and methods. i have worked for large corps and myself. absolutely no copyright laws 'protect' my work. sure, you might say that i am paid for it by the immediate employer/customer. but i could argue that those that copy are not only getting paid too, but becoming my competition. if i had royalties for all my ideas that have been copied, i'd be richer than any rock star. and what about the countless number of stateside employees that have 'trained' oversees counterparts only to be laid off afterwards? Corporations scream infringement and sue constantly, but the individuals get 'ripped off' everyday.

and then there's the 'other country' issue. why should another competing country get all our 'work' (including music) free of charge and penalty just because their gov't doesn't prevent it? it gives them an unfair advantage, that's why. so internal citizens are restrained while foreigners have all they want.

anyways, i used to think that intent (music copyright infringement) was a consideration, but i thought i heard that it is not. intent surely needs to be considered, but how is it proven (in real life)? with modern music production and styles, how can anyone avoid producing a similarity?!? so we need to be afraid of being sued for that? or, heaven forbid, if you quote something such as a national folk song.
 
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